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Watered-down stoned driving bill irks King

Editor’s note: This story is part of an occasional series about bills that could be introduced during the 2013 Colorado legislative session.

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State Sen. Steve King will try again to get a driving-while-stoned measure through the Colorado Legislature when it convenes next month.

But the Grand Junction Republican, who has repeatedly tried to get such a measure into law, already isn’t happy with how that bill will be drafted.

For the past two legislative sessions, King has tried to get a new law setting a threshold for being considered too stoned to drive, much like the 0.08 percent blood-alcohol content level set for drinking and driving.

In this case, that would be 5 nanograms of active tetrahydrocannabinol per milliliter of blood.

Opponents, however, have argued that standard or any other is based on questionable science.

So when King brought the measure before the state panel that previews proposed legislations, the Colorado Criminal and Juvenile Justice Committee, of which he’s now a member, it opted for a weaker measure.

“What it’s saying is there is a presumption that 5 nanograms is too high to drive, but you can rebut it (in court),” King said. “It’s weaker. I strongly believe that there is plenty of science there that says that 5 nanograms is a good standard. This allows for more science and it’s a step in the right direction.”

Under the justice committee bill that King and incoming House Minority Leader Mark Waller are to introduce, the bill will call for a 5-nanogram standard, but make it a “rebuttable inference” law. That’s legalese for something that’s not quite certain, and therefore, rebuttable with expert testimony in a court of law.

By contrast, the state’s DUI standard is a “per se” law, meaning it’s assumed to be correct as long as the threshold is met. It’s also harder to challenge in a court of law, said Waller, a Colorado Springs attorney and former prosecutor.

Both men said they would prefer the higher per se standard, but would settle for the weaker one if that’s what it takes to get the bill into the law books.

The two men said they will argue that the Colorado Criminal and Juvenile Justice Committee voted on the measure before Colorado voters approved legalizing the recreational use of marijuana. Had the panel done so afterwards, it might have changed some votes because of concerns legalizing pot will increase the number of stoned drivers and make a stoned-driving law imperative.

The weaker version is designed to help win more votes for the measure in the Legislature, appeasing supporters of medical marijuana, who were fearful a set standard would unfairly target them.

But legalizing all pot use changes the landscape dramatically, Waller said.

“What they said last year was that the only thing this bill does is inhibit these patients from being able to use their medicine, and it unfairly persecutes patients,” he said. “That argument is largely gone because we’re going to recreational use, and I’ve got a sneaking suspicion that the number of patients is going to drop drastically.”

Currently, there are more than 107,000 people listed on the state’s Medical Marijuana Registry.

The two legislators also plan to point out that the other U.S. state that legalized marijuana, Washington, had a driving-while-stoned provision included in its ballot question.

Waller and King said they have no idea how the measure will fare in next year’s Legislature. Two years ago, it cleared the then GOP-controlled House but died in the Democratic-controlled Senate.

This year, King managed to get it out of the 35-member Senate by a single vote, only to see it die in the House. It was one of 30 bills that was sacrificed by House Speaker Frank McNulty, R-Highlands Ranch, when he ended all debate on the second-to-last day of the 2012 session in order to killed a measure granting civil unions to same-sex couples.

Gov. John Hickenlooper included King’s bill in his call for a special session, but the measure died again. It had cleared the House, but died on a tie vote in the Senate because one senator was out of the state.

King said that while he’s prepared to argue for the weaker version of the bill, he will make a bid for the stronger legal standard because he believes the higher standard is inevitable.

“I believe in evidence-based problem solving and I think the evidence is going to show that this is a significant threat to the safety of the traveling public, and we will be dealing with this again,” King said. “I think I’ll be at some point vindicated in the fact that 5 nanograms per se is the right law for Colorado. But even though (the weaker version) is not as big a step, we’re going to be able to save some lives.”